Trump’s NLRB Just Quietly Ruled to Make Union Pickets Illegal

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The ruling by Trump's labor board could mean far-reaching restrictions on one of labor's most potent weapons. (Scott Varley/Digital First Media/Torrance Daily Breeze via Getty Images)

An all-Republican panel of President Trump’s National Labor Relation Board (NLRB) recently ruled that janitors in San Francisco violated the law when they picketed in front of their workplace to win higher wages, better working conditions and freedom from sexual harassment in their workplace. The ruling could result in far-reaching restrictions on picketing that limit the ability of labor unions to put public pressure on management.

The NLRB reached its conclusion by using the complex and convoluted employment structure created by the janitors’ employers. The janitors were technically employed by one company, Ortiz Janitorial Services, which was subcontracted by another company, Preferred Building Services, to work in the building of a third company.

This type of confusing employment relationship is increasingly common, resulting in workers being put in a position where it’s difficult to negotiate higher wages and better working conditions, or protect their basic employment rights.

The NLRB based its decision on a particularly onerous provision in federal labor law that prohibits employees from engaging in boycotts, pickets or other activities that are aimed at a secondary employer. The provision was added as part of the 1947 Taft-Hartley Act, taking away one of labor’s most powerful weapons.

In this case, the NLRB overturned an administrative law judge’s ruling that because the second company had significant control over the employment relationship, it constituted a joint employer. The judge based her conclusion on evidence that Preferred Building Services was involved in the hiring, firing, disciplining, supervision, direction of work, and other terms and conditions of the janitors’ employment with Ortiz Janitorial Services. Therefore, both Ortiz and Preferred acted as joint employers to the janitors.

This matters because if the various companies were joint employers, there were no prohibited secondary activities. But the NLRB held that the janitors worked for the subcontractor, and any actions aimed at any other company was illegal under the law.

What is remarkable about this case is how it makes things much worse for workers by only subtly reinterpreting the law. It takes a narrow read on the joint employment doctrine and thereby limits workers’ right to picket. And, as a result, many workers in what former U.S. Department of Labor Wage and Hour Administrator David Weil has termed “the fissured workplace” will find it difficult to vindicate their rights. Ultimately, this case shows how many basic fundamental rights associated with the First Amendment workers are prohibited from engaging in.

At their picket line in San Francisco, the janitors held signs demanding a municipal minimum wage increase, complaints about the companies’ labor practices and demands to stop sexual harassment. If any person other than the janitors had engaged in such a picket, their activities would clearly be protected under the First Amendment. However, because the NLRB found that these janitors “engaged in picketing with a secondary object prohibited by Section 8(b)(4)(ii)(B)” of the NLRA, these workers had run afoul of the law.

In 1984, labor law scholar James Gray Pope used the imagery of a ladder to highlight the absurdity of how the law treats workers’ picketing and speech rights as compared to how the law treats these activities for everyone else. “On the ladder of First Amendment values,” Pope explained, “political speech occupies the top rung, commercial speech rests on the rung below, and labor speech is relegated to a ‘black hole’ beneath the ladder.”

The First Amendment “black hole” for labor rights has become more apparent with the Supreme Court’s Janus decision, which created an onerous free-speech carveout breaking with decades of precedent for how to treat public sector workers’ free speech.

Instead of following its longstanding rule holding that the First Amendment only applies when a public employee speaks as a citizen on a matter of public concern, the Court held that a single employee’s complaint about union was a matter of First Amendment concern. Although time will tell, it appears unlikely that the Supreme Court will extend such First Amendment protections to public employees in cases that would help, rather than hurt labor.

The NLRB’s recent case restricting the picketing rights of subcontractors, temps and other workers who do not have a single direct employment relationship is a further sign that the labor board will continue limiting its joint employer doctrine. This will make it more difficult or even impossible for many workers to have any meaningful voice in the workplace. But the case also highlights some of the core problems of labor law as it currently exists. By being included under the NLRA, workers lose basic rights that all other Americans enjoy.

In addition to pushing for the NLRB to prevent employers from evading liability through a complex web of subcontractors, labor needs to push their way out of the First Amendment black hole that workers have been in for over 70 years.

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Hmmmm.... I said this was a pack of lies 4 months ago and guess what? There are still picket lines! What I did notice is that the Teamsters approved a contract that UPS workers voted against.... Any word on how that is coming along?

Posted by Keith Charles Cannon on 2019-03-12 01:26:33

Good question. The arrogance of the corporate D's running Illinois might make it hard to get real answers though. Illinois was an unlimited, pay-2-play, free-for-all long before Citizen's United. Josh Edelman was caught bragging how the charter school forces purchased their way to anti-teacher legislation by giving Mike Madigan huge political donations. Madigan always serves the donor class first.

The irony is that Madigan's hardball tactics are now coming back to bite him in the rump. His daughter Lisa, currently the Illinois AG, was seen as the next governor of Illinois. But her father's name is being used to pound any D's he's groomed and selected for the voters. Mike Madigan symbolizes all that's wrong with Illinois D's. His daughter must sense that and has chosen to exit the political stage.

Posted by Anne on 2018-11-06 03:37:11

Anne perhaps the things you point to that happened during D leadership were "compromises" in exchange for other priorities? I'd say it's worth asking current/former Illinois D's their rationale for passing/allowing those anti-working class measures. Say you feel disenfranchised from your party and see if they reply with a reasonable justification.

Posted by Allana on 2018-11-04 11:27:43

I wish I could tell you that Illinois D's were as good as those in Oregon at carrying the water. It's our Illinois D's (under D governor) who pushed through a $300-million + tax break for the Chicago Mercantile Exchange. That same piece of legislation also raised the estate tax exemption from $3 million to $4 million. Meanwhile, we are one of the most regressive states for taxation. Illinois has a flat tax which was raised from 3.5 to 5 percent. I don't have a problem paying taxes, but Illinois' system is not fair to the poor and working classes.

Posted by Anne on 2018-11-03 15:33:59

This message is as good as fake news. Of both parties why it is the Democrats that you find fault with? Republicans political platform is about destroying unions. As a union member in Oregon I can tell you it is the Democrats that carry our water. This message is like the Amazon product review complaining about the $5000 racing bicycle because you don't like the bell on the handlebars. Want to have better representation from Democrats? VOTE! Democrats especially those between 18 and 35 have the lowest voting rate of any other group. If you want to get support you have to give support.

Posted by Greg on 2018-11-03 13:40:31

Do you want to know what I think? (rhetorical question). I've walked a picket line, carried a union card, I was even a shop steward, and my union (IAM) was busted back in the Reagan/ Bush Era. Selfishness and corruption killed the movement decades ago. What the NLRB is doing now is mopping up. Ironically.

Posted by Maisha Grinn on 2018-11-03 10:00:30

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Posted by Julia J. Reyes on 2018-11-03 06:45:13

name. them. all.

let them be publicly accountable for their actions.

Posted by Bathazar Xavier on 2018-10-31 17:17:11

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Posted by Jennifer M. Zamora on 2018-10-31 13:05:37

Unions are responsible for most of the economic progress we've had, yet they're being busted down by republicans and not nearly as strongly supported by democrats as they should be ... the people suffer when unions are weakened.

Posted by AvangionQ on 2018-10-31 08:53:13

Because the Electoral college makes it pointless. They could win the vote and still not become president.

Posted by Wes Lambert on 2018-10-30 18:03:40

what is clear is that they've created a structure that was never covered under the Act and that is indeed not clearly the employer.

humans are ingenious and the laws have to be re=written to keep up with innovation.

the law hasn't caught up and there's a loophole at present that has been exploited

Posted by fuster on 2018-10-30 08:45:05

It's not so clear that it's reasonable to call a company with direct involvement in hiring/firing/disciplining/supervision/direction anything other than a co-employer.

Posted by Matt L on 2018-10-29 21:33:47

Amazing how both major parties are universally disliked, yet barely anyone will consider voting for a 3rd party candidate.

Posted by AirLancer on 2018-10-29 16:59:49

For those who do not know the entire quotation:

First they came for the socialists, and I did not speak out—

Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—

Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.

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Posted by Annie T. Kouba on 2018-10-29 12:41:16

on their own property, not anywhere that they desire.

there is no right to impede access to the property of others.

Posted by fuster on 2018-10-29 11:53:12

good article.

it clearly explains how the NLRB reached a reasonable conclusion based upon the law and that the correct decision is one that hurts unions.

obviously, the owners' attorneys have created a structure that "outsmarts" the law and that there is likely no effective remedy for the unions other than new law.

Posted by fuster on 2018-10-29 11:51:41

I you impede my ability to traverse a sidewalk or enter a building you are committing a crime.

Posted by Wkenddad on 2018-10-28 10:39:44

After spending several days considering how to respond to the bill, Truman vetoed Taft–Hartley with a strong message to Congress. Truman had expressed no opinion on the bill prior to his veto message. The committees considering the bill had requested suggestions from the Truman administration, but did not receive any. With the administration taking no stand on the bill, it passed both houses with strong bipartisan support. A clear majority of House Democrats voted for the bill, while Democrats in the Senate split evenly,

Despite Truman's all-out effort to stop the veto override, Congress overrode his veto with considerable Democratic support, including 106 out of 177 Democrats in the House, and 20 out of 42 Democrats in the Senate

Posted by Wkenddad on 2018-10-28 10:38:02

Well, the joint employer issue has taken a nasty turn. In Browning-Ferris, the Obama NLRB changed the law to make it more favorable to employees. Whether that change would have held up under judicial review is something that we will never know. Unfortunately, the Republican Board has now decided to use rulemaking to undo the change and raise the bar for establishing a "joint employer." The upshot is that workers will find it increasingly difficult to reach their real employer, often the one with the most control over the workplace.

Posted by SpinControl on 2018-10-28 09:53:47

Right of the people peaceably to assemble.

Posted by Debra1025 on 2018-10-28 08:18:08

Which is why, once this election is over, we need to hold the Democrats accountable. Our Council tells us we should vote blue, again and again, yet once we're past the election, our Democrat elected officials do little to nothing for working families. In Illinois, it was under Democrat leadership that SB7, a law aimed squarely at teachers, was passed. Democrats, beginning with President Obama, led the way to expand charters schools (nearly all of them are not unionized). It was under Democrat House and Senate leadership (along with Gov. Ruiner's signature) that teachers' salary raises are now effectively capped at 3 percent, regardless of what may happen with inflation, etc., while Illinois will now turn over $75 million+ to unaccountable private schools.

We're getting tired of voting D and seeing them sell out working families again and again.

Posted by Anne on 2018-10-28 04:52:49

Welp- not a trade unionist; so I'm not going to speak up.

Posted by pffsshht on 2018-10-26 19:45:15

This is something construction workers have to confront on a daily basis and have been in this situation since Taft-Hartley was made law by a bi-partisan vote and over a Presidential veto. This is not something new and the NLRB under Obama ruled exactly the same way in similar cases. Even though Democratic legislators have had multiple opportunities since 1947 to repeal Taft-Hartley and restore the NLRA they have failed to do so. The last time action could have been taken was 2010 but it wasn't allowed to be addressed by the leadership.

This is one of the many anti working class laws enabled by both parties to minimize the influence of the working class. Under Section 8(b)(4) if a union is found to be in violation of the law they can suffer severe economic penalties. On the other hand, since Taft-Hartley employers can violate any law associated with the NLRA and there is no economic penalty against the employer in addition the NLRB lacks any ability to enforce any decision against an employer who violates the law. This is why employers don't care about really care labor law, either do legislators.

Posted by donny1020 on 2018-10-26 18:47:30

In Citizen's United the US Supreme Court's GOP majority gave Corporations unlimited 1st Amendment freedom to anonymously impact elections. Now labor union members won't even be allowed to stand on a sidewalk holding a sign. The Fascist noose is tightening. Vote November 6.

Posted by John Norquist on 2018-10-26 18:44:21

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